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OFTEXAS

July 26, 1961

Honorable CharlesJ. Lieck, Jr. CriminalDistrict Attorney Bexar County San Antonio,Texas OpinionNo. WW-1099

Re: Under the facts stated, when may the county clerk issue a writ of execution

on a county court judgDear Mr. Lieck: ment and related questions.

Your letter requestingan opinionhas been received and carefully consideredby this department. We quote from your letter as follows:

"OnApril 17, 1961Welex Inc. recovered judgment against Emmett Cole, Jr. in said court based upon a jur verdict for the sum of $796.%7 with 10% interest from May 19, 1959, and $200.00attorney's fees and all costs of suit. The judgment is dated April 17, 1961 and was signedby the Judge of said court April 19, 1961. Amotion for
new trialwas filed April 24, 1961, and without having been heard, an amended motion was filed May 12, 1961.”

Your first question is whether under the facts stated, and assuming that 90 days will elapse for determination of the amendedmotion, how longwill the Clerkhave to wait before he can lawfully issue a writ of execution?

Rule 329b, Rules of Civil Procedure,effectiveJanuary 1, 1961, by which original or amendedmotions for new trials in county court cases are governed is quoted as follows:

"The following rules shallbe applicable to motions for new trialHonorable Charles J. Lieck, Jr., Page ‘2(w-1099)

filed in all district and county courts:

"1. Amotion for new trialwhen required shallbe filed within ten (10) days after the judgment or other order complained of is rendered.

"2. An originalmotion for new trial filed within said ten (10)day periodmay be amendedby leave of the court. Said amendedm~otionshallbe filed before the originalmotion **is** acted upon and within twenty (20)days after the originalmotion for new trial is filed. Notmore than one amendedmotion for new trialmay be filed.

“3. Allmotions and amended motions for new trialmust be determined within not exceeding forty-five (45)days after the original or amended motion is filed, unless by one or more successivewritten agreements of the parties In the case filedwith the clerk of the court the decision of the motion Is postponed to a day certain speciflcally set out in any such agreement. Any such day certain shallnot be more than ninety (90)days after such original or amendedmotion is filed.

"4. It shallbe the duty of the proponent of an original or amended motion for new trial to present the
same to the courtwithin thirty (30) days after the same is filed. However, at the discretion of the judge, an originalmotion or amendedmotion for
new trialmay be presented or hearing thereon completedafter such thirty (30)day period. Such delayedhearing shall not operate to extend the time within which the original or amended motion must be determined,unless suchHonorable Charles J. Lieck, Jr., Page 3 (Ww-1099)

time be extendedby agreement as provided for in the preceding subdivisions of this Rule. In the event an original motion or amendedmotion for new trial be not presentedwithin thirty (30) days after the date of the filing thereof, and the judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, such motion will be overruledby operation of law forty-five (45)days after the same is filed, unless disposed of by an order rendered on or before said date. In the event the decision of themotion is postponed by any written agreement as provided in subdivision 3 of this Rule then any such original or amendedmotion, if not determinedby the court,will be overruled by operation of law ninety (90)days after the same is filed or on the latest day certain agreed upon, whichever occurs first.

"5. Judgments shallbecome final after the expirationof thirty (30)days after the date of rendition of judgment
or order overrulingan original or amended motion for new trial.

. . .'

Rule 627, Rules of Civil Procedure,reads as follows:

"The clerk of the court or the

justice of the peace shall Issue the executionupon such judgmentupon the application of the successfulparty
or his attorney after the expiration of twenty days from and after the rendition of a final judgment in the district or county court or in the justice court, and after the overruling of any motion therein for a new trial, or in arrest of the judgment, if no supersedeasbond has been filed and approved."

As set out in the statute, a motion for a new trialmust be filed within ten (10)days after entry of’

Honorable Charles J. Lleck, Jr., Page 4 (m-10%)

judgment,may be amended once by permission of the court within twenty (20)days after filing the originalmotion if the ori

8lnalmotion has not been acted upon. Bunker

v. Lott, 2 2 S.W.2d 879 (Civ.App.1955, error ref. n.r.e.). The original or amendedmotion shouldbe presented to the courtwithin 30 days after filing,but the court has the right to extend the time for presentationuntil the motion is overruledby operation of law after forty-five (45) days have elapsed. If the court does not rule on the original or amendedmotion within forty-five (45)days from the date of filing, it is overruledby operation of law unless all parties or their attorneys extend the time inwriting for a definiteperiod or dav certain for the court to rule on themotion. Moore v.-Decuir, 286 S.W.2d 471 (Civ.App.1956, error ref.).

Any such day certain shallnot be more than ninety (90)days after the original or amendedmotion is filed. In the event the decision on themotion is postponedby a written agreement, the original or amendedmotion, If not determinedby the court,will be overruledby operation of law ninety (90)days after the same Is filed or on the latest day certain agreed upon, whichever occurs first. The judgment of the court becomes final thirty (30)days after the date of rendition of Judgment or a timely filed motion for new trial or amendedmotion is overruledby the court or by operation of law.

The two important changes in the amendment of Rule 32913

which we are concernedwith here are the ninety (90)day limitationperiod designed to eliminateunreasonable delay in disposing of motions for new trial and the application of this rule to county courts as well as district courts,

Under'the facts stated In your letter, the judgment in the instant casewas properly signed and entered, the original and amendedmotions for new trial were timely filed, the amendedmotion being filed on the 12th day of May, 1961. If themotion is not presentedwithin the thirty (30)day period after filing and the judge in his discretion refuses to hear themotion, the motion Is overruled by operation of law forty-five (45)days after being filedwhich in this casewould be June 26, 1961. Assuming that there is a written agreementbetween the parties toHonorable CharlesJ. Lieck, Jr., Page 5 (WW-1099)

postpone the hearing to a day certain and that the ninety (90)day period will elapsewith no action taken on the amendedmotion by the court, the 90 day period will be up under your facts on August 10, 1961, and the judgmentwill become final Se Civil Procedure

Ptember 11, 1961, (seeRule 4, Rules of

, thirty (30)days after themotion for
new trial is overruledby operation of law.

Under Rule 627, Rules of Civil Procedure,which provides that executionmay issue twenty (20)days "after the rendition of a final judgment in the district or county court

. . . and after the overruling of any motion therein for a new trial," executionmay safely issue,under the assumed facts,herein stated, on October 2, 1961, (seeRule 4, Rules of Civil Procedure),unless a supersedeasbond has been filed and approved.

Therefore, In answer to your first question,under the facts stated in your letter and assuming there was a written agreement to postpone the hearing to a day certain and that 90 dayswill elapse for the determinationof the amendedmotion, the Clerk can lawfully issue a writ of execution on October 2, 1961, unless a supersedeasbond has been filed and approved. However, under Rule 628, executionmay issuewithin said twenty days under named conditions.

In your second, third, and fourth questions you ask if there is any liability on the part of the Clerk for the premature issuance of the executionand, if he refuses to issue an execution,which he deems premature,would he be liable in damages, or would he be guilty of contempt of court for such refusal.

The general rule seems to be that the premature issuance of an execution is an irregularity,but the writ must be respecteduntil it is vacated in a direct proceeding for that purpose. House v. Robertson, 36 S.W. 251 (Civ.App.1896);Acrey v. Henslee, 2'19S W.2d 925 (Civ.App. 1955); Sydnorv. Roberts, 13 Tex. 600; Interstate Life Insurance Companyv. Arrlngton, 307 S.W.2d 14b

18 Tex.Jur. 581, Executions, Sec. 43. (Ci v.App. 1957); It is clear from a study of the above cited cases that, in the exercise of his ministerial duties, there Is no liability on the part of the Clerk for themere issuance of an execution which is premature..

Honorable CharlesJ. Lieck, Jr., Page 6 (m-1099)

Althoughwe find no Texas casesholding the Clerk liable in damages for the premature issuance of an execution,we do find certain caseswhich indicate that the Clerk is not immune from liabilitywhere he refuses to issue an executionwhich he deems premature and an injury occurs resulting in actual damage to one of the partiesbecause of neglect in the discharge of his duties,
or wilful disregard of the rights of a oarty to an action. Moore v. Muse, 47 Tex. 410; Kznney v. Bell,-127 Fed. 1002 ~c.c.A.E.D. Pa. 1904). However, these cases also indicate that the Clerk is not liable in damagesbecause of his refusal to issue executionwhere he has a legal reason for not doing so. In Kruegal v. Jones, 143 S.W. 989 (Civ.App. 7912), the Courtheld that the refusal of the Clerk to i.ssuk.an

executionunder the facts of the case did not renderhim liable in damages, the plaintiff In such circumstanceshaving no right to the writ.

The situation ismuch the same In a proceeding for contempt of court. If the Clerk refuses to carry out the order of the court or neglects to carry out the duties imposedby statute in the performance of his ministerial duties he may be found guilty of contempt of courtbut, if

a party to a suithas no right to the writ, the Clerk is not guilty of contempt. 12 Tex.Jur. 159, Clerks of Court, Sec. 39; Francis v. State, 156 S.W. 1167 (C.C.A. 1913); Kruegal v. Williams, 153 S.W. 903 (Clv.App. 1913, error ref.).
Therefore, in answer to your last three questions, it is the opinion of this department that there is
no liability on the part of the Clerk for themere Issuance of an executionwhich is premature and that the writ must be respecteduntil it is vacated in a direct proceeding for that purpose. Neither is the Clerk liable in damages or guilty of contempt of courtwhere he refuses to issue an executionwhich is, in fact, premature,where there is no valid judgment and a legal reason for his refusal. However, the Clerkmay be liable in damages if he refuses to act when a party has a right to an executionand his refusal is due to the wilful neglect of the discharge of his duties or wilful disregard of the rights of a party to an action resulting in actual damage to a party. He may also be found guilty of a contempt of courtwhere he neglects to perform his duties as a ministerial officerwhich have been imposed by statuteand he fails or refuses to carry out the order of the courtwithout legal excuse.Honorable CharlesJ. Lieck, Jr., Page 7 (WW-1099)

SUMMARY

Under the facts presented, the Clerk may lawfully Issue a writ of execution on the judgment on October 2, 1961. There is no liability on the part of the Clerk for themere premature issuance of an executionbut the writ may be vacated in a direct proceeding for that purpose. The Clerk is not liable in damages or guilty of contempt of courtwhere he refuses to Issue a writ of execution which is, in fact, premature.

Yours very truly,

WILL WILSON Attorney General of Texas

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APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman
Ralph R. Rash Pat Bailey Watson C. Arnold J. Milton Richardson Byott’ ~P-w-JQ~+ IolzBarron Wilcox Assistant

REVIEWED FOR THE ATTORNEY GENERAL

BY: Morgan Nesbitt